Much of the media coverage about the high-profile unlawful termination case brought by freelance journalist, Antoinette Lattouf, against the Australian Broadcasting Corporation (the “ABC”) relates to the free expression of political opinions, race and national extraction.  

Looking at an important but technical barrier to her broader claim, the Fair Work Commission (the “FWC”) has recently handed down its decision confirming Ms Lattouf was terminated at the initiative of the ABC. It found her employment did not come to its natural end at the conclusion of her casual engagement, paving the way for her to pursue her claim even as a “true casual”. 

Background 

Ms Lattouf was employed by the ABC on a casual basis and, in December 2023, was engaged as a fill-in on-air host for five days on ABC’s Sydney Mornings Radio Program. The ABC received complaints about Ms Lattouf being on-air. Ms Lattouf was informed of this and advised by a manager to “keep a low profile” particularly noting to not share views on social media that could be considered not impartial or controversial unless information from a reputable source. Shortly after the conversation, Ms Lattouf shared an Instagram post from Human Rights Watch that ‘Israel was using starvation as a weapon of war’. The ABC considered that the post breached its editorial policies and that Ms Lattouf failed to follow a previous direction. The ABC took Ms Lattouf off the air, asked her to leave the premises and informed her that she would not be required to work for the rest of her engagement (a further two days).  

The ABC’s ‘Garden Leave’ Submission 

The ABC contended that the relevant casual employment contract gave them discretion to make unilateral changes to the engagement if Ms Lattouf was advised of such changes. For this reason, they considered that the time that Ms Lattouf was not on-air was properly characterised as “garden leave” as she was paid for the full engagement, and part way through employment her duties were simply altered from on-air work to ‘work’ doing nothing. 

In support of this particular characterisation, the ABC noted the usual “termination process” had not been followed – she remained in the ABC’s software programs and systems, retained the ability to access some ABC computer systems and had not been asked to return her security card.  

The ABC therefore considered that Ms Lattouf’s employment had terminated “naturally” at the end of the five days, and this would not constitute a “dismissal” (which is a termination at the initiative of the employer). 

The FWC finds the employer need not ‘pull the trigger but only to load the gun’ 

The FWC disagreed with the ABC for a number of reasons, with the key reasons being:

• that while the ABC was contractually permitted to make unilateral changes to her work, the ABC did not inform Ms Lattouf she would be paid for her full engagement (on the evidence, this was a retrospective decision by the ABC);  
• since the contract was explicit that remuneration was based on hourly service, the payment for the five days’ “work” was found to be more accurately categorised as an exgratia payment;
• even if the payment should be considered as wages, the FWC noted that only the contract would have been kept alive by this, the actual employment relationship (which is more than mere contract) had ended when she was given no further work to do; and
• the ABC did not respond to Ms Lattouf’s email which she sent attempting to clarify whether she was still employed and, if not, on what grounds she was dismissed. 

Although the ABC never used the words “termination” or “dismissal”, the FWC examined the meaning of dismissal and found that the ABC’s actions, properly understood, put in train and resulted in the end of the employment relationship, which was enough to constitute termination at the ABC’s initiative. The FWC used the analogy that it was sufficient to find that the ABC had “loaded the gun” and it was not necessary to also find it “pulled the trigger”. 

Takeaways for Employers 

Now that a dismissal has been established, Ms Lattouf will be gearing up for a dispute about why the ABC terminated her employment. Until we reach that instalment, there are several takeaways for employers: 

• casual employees may have access to the unfair dismissal regime or other redress under the Fair Work Act, if they can demonstrate they were terminated at the employer’s initiative;
• dismissal occurs when the employment is terminated and done so on the employer’s initiative, the precise event or means of termination are not necessary to be established;
• the employment relationship is more than just a contract, and can include:
  • the field of employment;
  • the terms of industrial instruments including awards and enterprise agreements;
  • all contracts in a series of time-limited contracts;
  • the context in which the employment contract and relationship operated;
  • conduct of the parties during the relationship; and
  • the circumstances in which employment ended.
• moving forward there may be an expectation that employers better understand if the contract and the relevant employment relationship has terminated naturally through effluxion of time, at the initiative of the employee or at the initiative of the employer.

Veronica Lee, Senior Associate and Daniel Prodigalidad, Paralegal